Appeal seen in Dillery decision

Friday, March 16, 2001

By BRAD DICKEN
braddicken@sanduskyregister.com
SANDUSKY
Kelly Dillery's lawyers are already writing their motion asking a
federal judge in Toledo to reconsider his Wednesday ruling that ended
their lawsuit against the city of Sandusky.

The lawsuit accused the city of violating Dillery's civil rights
because it persecuted her by stopping her when she rode her
wheelchair into the city's roadway and failed to comply with 1992's
Americans with Disabilities Act.

U.S. District Court Judge David Katz granted the city of Sandusky's
request for summary judgment, ending the case, except for the
numerous appeals that could take the case to the U.S. Supreme Court.
"It looks to me as if there were some mixing of facts and cases,"
Dillery's lawyer, K. Ronald Bailey of Sandusky, said. "We'll try to
address those (errors) and bring those to the court's attention."

Bailey said he and Dillery's other Sandusky lawyer, Linda Van Tine,
have begun reviewing the case and preparing their response.

"It's a big disappointment," Bailey said. "You think of it logically
and think 'Gee, the court has already held the city was not in
compliance -- we're going to trial.'"

But unlike fellow federal Judge James Carr, who held in another
lawsuit against the city that Sandusky was in clear violation of ADA
compliance, Katz wrote Dillery's legal team had failed to show the
city hadn't undertaken a good faith effort to comply with the ADA.

In the Ability Center lawsuit, filed in 1999, shortly after Dillery's
case, the Ability Center of Greater Toledo, the Statewide Independent
Living Council and five individuals sued the city to get it to comply
with the letter of ADA law.

In February, Carr ruled the city failed to make curb cuts in the city
accessible to people with disabilities under the ADA. Despite that
ruling, Carr decided a lawsuit couldn't force the city to create a
transition plan and that the plaintiffs in the lawsuit weren't
entitled to monetary damages.

Tom Zraik, the Toledo lawyer representing the plaintiffs in that
case, said he hasn't read the decision in the Dillery case yet, but
doesn't see what effect it could have on his lawsuit.

"Whatever the judge ruled in (Dillery's) individual case has little
bearing on ours," he said.

Bill Lang, the city's lawyer in the two cases, said the city was
satisfied with Katz's ruling, but doesn't think it's over. He said he
was pleased Katz supported Dillery's arrests, even if she wasn't
convicted on two of the charges.

"I think the judge in the decision indicated that there was probable
cause to arrest her and that certainly vindicates (Officer Tracy
Brewer) and the police department and the city," he said. "Not every
defendant is guilty, we all know that, but certainly arrests can be
made."

Bailey said he doesn't believe Katz's staff, who researched the case
for the judge, understood Dillery was cleared in two of the cases
discussed in the lawsuit. She was found not guilty in 1999 of child
endangering for riding her wheelchair into a city street with her
then-4-year-old daughter on her lap and a separate charge of being a
pedestrian in the roadway was dismissed.

"We'll try to further clarify that," he said.

Lang said he thinks there will be appeals in the Ability Center case
from both sides on the issues they lost.

"The Ability Center case addresses the curb cuts issues and the judge
was of the opinion that the city violated the law," he said. "The
city felt it didn't violate the law. It's probably an appealable
issue."

Bailey had sought an injunction to prevent the city from making any
further repairs to its curb cuts until they complied. Concerns about
the curb cuts include grades that are too steep and cuts that are not
flush with the street.

"They don't comply when they put in new curb cuts that don't comply
(with ADA)," he said.
Under Carr's ruling, the lawyers in the Ability Center case have
until June to reach an agreement on how best to proceed in making the
city more compliant.

In a side note, appeals by the city to the Ohio Supreme Court
contesting an appeals court ruling are ongoing. The Sixth District
Court of Appeals had decided to grant Bailey fees for time he spent
trying to get paperwork from the city under the Freedom of
Information Act.

"Really the issues is whether or not the court of appeals was correct
in (agreeing with) the city giving us the records we requested and
paying legal fees," Bailey said.

The city is contesting the appeals court decision on the grounds that
Bailey should have sought the information he wanted for Dillery's
defense in the child endangering case through criminal discovery
rules instead of under freedom of information laws.

Bailey said he has not yet discussed the case with Dillery, who has
recently moved back to Sandusky.